[Federal Register Volume 61, Number 5 (Monday, January 8, 1996)]
[Proposed Rules]
[Pages 606-611]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-218]




[[Page 605]]

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Part III





Department of Transportation





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Federal Highway Administration



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49 CFR Part 391



Qualifications of Drivers, Vision and Diabetes; Proposed Rule

  Federal Register / Vol. 61, No. 5 / Monday, January 8, 1996 / 
Proposed Rules   

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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

49 CFR Part 391

[FHWA Docket No. MC-96-2]
RIN 2125-AD73


Qualification of Drivers; Vision and Diabetes; Limited Exemptions

AGENCY: Federal Highway Administration (FHWA), DOT.

ACTION: Notice of proposed rulemaking (NPRM); request for comments.

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SUMMARY: The FHWA announces a proposal to allow those drivers currently 
holding valid waivers from both the vision and diabetes standards 
contained in the Federal Motor Carrier Safety Regulations (FMCSRs) to 
continue to operate in interstate commerce after March 31, 1996. This 
action is directed solely at those drivers who have been granted 
temporary waivers to participate in either the Federal vision waiver 
study, who numbered 2240, or in the Federal diabetes waiver study, who 
number 119 as of November 1, 1995. The FHWA believes that allowing this 
special group of drivers to continue to drive after March 31, 1996, is 
consistent with the public interest and safe operation of commercial 
motor vehicles (CMV). This action is necessary because the waiver 
program termination date of March 31, 1996, has been established, and 
without this action, the drivers will no longer be qualified to operate 
in interstate commerce after that date. The FHWA proposes to allow 
these drivers to continue operations, subject to certain operating 
conditions. The proposal also includes a technical amendment to 
relocate an existing provision so that all limited exemptions from 
driver qualification standards can be found in the same subpart.

DATES: Comments must be received on or before February 7, 1996.

ADDRESSES: Submit written, signed comments to FHWA Docket No. MC-96-2, 
Room 4232, HCC-10, Office of the Chief Counsel, Federal Highway 
Administration, 400 Seventh Street, SW., Washington, DC 20590. All 
comments received will be available for examination at the above 
address from 8:30 a.m. to 3:30 p.m., e.t., Monday through Friday, 
except Federal holidays. Those desiring notification of receipt of 
comments must include a self-addressed envelope. Comments received 
after the comment closing date will be filed in the docket and will be 
considered to the extent practicable. The FHWA may issue a final 
determination and rule on this matter at any time after the close of 
the comment period.

FOR FURTHER INFORMATION CONTACT: The FHWA has established a special 
telephone number to receive inquiries regarding this action. The number 
is 1-800-832-5660. Office hours are from 7:45 a.m. to 4:15 p.m., e.t., 
Monday through Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION: Section 206(f) of the Motor Carrier Safety 
Act of 1984 (MCSA), Pub. L. No. 98-554, 98 Stat. 2835 (codified at 49 
U.S.C. 31136(e), formerly 49 U.S.C. App. 2505(f)) allows the Secretary 
of Transportation to issue waivers from the Federal Motor Carrier 
Safety Regulations only after a determination that such waivers are not 
contrary to the public interest and are consistent with the safe 
operation of CMVs. Historically, the FHWA has issued limited waivers 
and does not intend to enter into any large scale program of 
exemptions. The safety performance data collected under the vision and 
diabetes waiver programs would be used as the basis for this 
determination; however, separate research proceedings would form the 
basis for any future adjustments, if warranted, to the current vision 
and diabetes standards. The FHWA has decided on a 30 day comment period 
in order to give adequate notice to waived drivers of their status at 
the conclusion of the waiver program on March 31, 1996. Prior notices 
on the waiver program have established the issues facing the FHWA in 
deciding the disposition of these drivers; therefore, these issues are 
well known to potential commenters on this notice. See 59 FR 50887 
(October 6, 1994) and 59 FR 59386 (November 17, 1994).

Vision Waiver Program Background

    On February 28, 1992, the FHWA published a notice of proposed 
rulemaking (NPRM), 57 FR 6793, requesting comments on the need, if any, 
to amend its driver physical qualification requirements relating to 
vision. On March 25, 1992, the FHWA published a notice of intent to 
issue waivers from the vision requirement, 57 FR 10295. The notice 
indicated that applications would be processed as quickly as possible 
and waivers would be issued for a period of three years or until the 
current rulemaking addressing the Federal vision requirement is 
completed, whichever occurred first. The notice imposed certain 
conditions and reporting requirements on applicants, among them that 
applicants for a waiver submit medical certification that the vision in 
their better eye is at least 20/40 acuity, corrected or uncorrected.\1\

    \1\ The current Federal vision standard for CMV drivers 
requires: distant visual acuity of at least 20/40 (Snellen) in each 
eye without corrective lenses or visual acuity separately corrected 
to 20/40 (Snellen) or better with corrective lenses, distant 
binocular acuity of at least 20/40 (Snellen) in both eyes with or 
without corrective lenses, field of vision of at least 70 degrees in 
the horizontal meridian in each eye, and the ability to recognize 
the colors of traffic signals and devices showing standard red, 
green, and amber. 49 CFR 391.41(b)(10).
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    The FHWA published a subsequent notice, 57 FR 23370, on June 3, 
1992, announcing the receipt of applications by drivers for waiver of 
the FHWA's vision requirements and seeking comments on its intent to 
waive its vision requirements for drivers who met certain conditions. 
The notice explained that the proposed waiver program would enable the 
FHWA to conduct a study comparing a group of experienced drivers with a 
visual deficit in one eye with a control group of experienced drivers 
who meet the Federal vision requirements. The FHWA believed that the 
study would provide the empirical data that a previous study did not.
    In its Notice of Final Disposition, 57 FR 31458, published on July 
16, 1992, the FHWA instituted the waiver program, making temporary 
waivers available to drivers who met the announced conditions. The FHWA 
determined that the waiver is not contrary to the public interest. The 
program is consistent with the national policy, as expressed in the 
Rehabilitation Act of 1973 and the Americans with Disabilities Act, to 
facilitate the employment of qualified individuals with disabilities. 
Moreover, the FHWA found that the waiver program was consistent with 
the safe operation of CMVs because the program's requirements would 
effectively screen out unsafe drivers.
    These safeguards required waiver applicants to be otherwise 
qualified under 49 CFR Part 391, and hold a valid commercial driver's 
license to operate a CMV issued after April 1, 1990. The applicant must 
also have had three years' recent experience driving a CMV without (1) 
license suspension or revocation; (2) involvement in a reportable 
accident in which the applicant received a citation for a moving 
violation; (3) conviction for driving a CMV while intoxicated, leaving 
the scene of an accident involving a CMV, commission of a felony or 
more than one serious traffic violation involving a CMV; or (4) more 
than two convictions for any other moving violation in a CMV. Finally, 
the applicant had to present proof from an 

[[Page 607]]
optometrist or ophthalmologist certifying that the applicant's visual 
deficiency has not worsened since his or her last examination, that 
vision in one eye is at least 20/40 acuity, corrected or uncorrected, 
and that the applicant is able to perform the driving tasks required to 
operate a CMV.
    In addition, the applicant had to comply with the following 
requirements: (1) report all citations for moving violations involving 
a CMV; (2) report the disposition of the charge; (3) report any 
accident involvement whatsoever while operating a CMV; (4) submit 
documentation of an annual examination by an ophthalmologist or 
optometrist; and (5) submit reports of vehicle miles traveled monthly 
in a CMV.

Court Decision

    On August 2, 1994, the U.S. Court of Appeals for the D.C. Circuit 
found that the agency's ``determination that the waiver program will 
not adversely affect the safe operation of CMVs is devoid of empirical 
support in the record'' and that ``the FHWA has failed to meet the 
exacting requirements of section 2505(f) (now 49 U.S.C. 31136(e)).'' 
Advocates for Highway and Auto Safety v. FHWA, 28 F.3d 1288, 1294. 
Consequently, the Court concluded that the FHWA's adoption of the 
waiver program was contrary to law, and vacated and remanded the rule 
to the agency.
    On October 6, 1994, the FHWA published a Notice of Determination, 
Request for comments, 59 FR 50887, extending the validity of the vision 
waivers for a thirty-day period. The notice also proposed to allow the 
waiver program to continue until its original March 31, 1996, 
termination date based on the additional empirical evidence presented 
in the notice. On the same day, an emergency motion was filed in the 
D.C. Circuit requesting that the court issue and enforce the mandate in 
Advocates, thereby halting the waiver program. The court issued its 
mandate on October 21, 1994, and on October 24, 1994, the court denied 
the Advocates' emergency motion.
    On November 17, 1994, the FHWA published a Notice of Final 
Determination (59 FR 59386) that continued the vision waiver program 
through March 31, 1996. The FHWA's decision was based, in part, on data 
collected on the group of waived drivers indicating that they had 
performed and continued to perform more safely than drivers in the 
general population of commercial drivers. The notice announced that the 
FHWA would develop and impose more stringent performance conditions to 
further reduce the safety risks to the waived drivers and highway 
users. This task was accomplished by separate mailings to vision waiver 
drivers on February 8, 1995. The notice also announced that the FHWA 
would convene a public meeting regarding its research plans with 
respect to defining the appropriate vision standard.

Diabetes Waiver Program Background

    The FHWA has considered various amendments to its diabetes 
requirement since 1977. See 55 FR 41028 (October 5, 1990) (notice of 
proposed rulemaking) and 52 FR 45204 (November 25, 1987) (advance 
notice of proposed rulemaking) with FHWA docket number MC-87-17. Please 
refer to these notices for a complete background discussion of the 
FHWA's efforts in this area. Copies can be found in the docket.
    The FHWA published in the Federal Register a Notice of Intent to 
Initiate a Waiver Program for certain insulin-using diabetic drivers of 
CMVs from the absolute prohibition contained in the FMCSRs. See 57 FR 
48011 (October 21, 1992). The intent of the proposed waiver program was 
to collect data on the driving experience of a group of insulin-using 
drivers and use that information to support amending, if warranted, the 
current diabetes requirement.2

    \2\ The current Federal diabetes standard for CMV drivers 
requires no established medical history or clinical diagnosis of 
diabetes mellitus currently requiring insulin for control. 49 CFR 
391.41(b)(3).
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    On July 29, 1993, the FHWA published in the Federal Register a 
Notice of Final Disposition allowing certain insulin-using diabetic 
drivers to operate a CMV in interstate commerce for a 3-year period. 
Stringent conditions were established to satisfy the mandate that this 
action be consistent with the safe operation of CMVs. These conditions 
included at least three years of experience driving a CMV while the 
individual had been using insulin to control his or her diabetes, a 
good driving record (as in the vision waiver condition) and 
certification from an endocrinologist that the diabetic condition will 
not adversely impact on the applicant's ability to operate a CMV. In 
addition, participants were required to monitor their blood glucose 
levels using portable glucose monitoring devices and maintain accurate 
logs, submit monthly driving activity reports to the FHWA, notify the 
FHWA of any involvement in an accident and undergo biannual 
examinations by an endocrinologist. Approximately 140 drivers were 
accepted into the diabetes waiver program. For a complete description 
of the diabetes waiver program, see 58 FR 40690, July 29, 1993.
    The August 2, 1994, court decision in Advocates called into 
question the FHWA's ability to issue waivers to insulin-treated 
diabetic drivers because of the similar approach used to pre-qualify 
drivers for participation in the diabetes waiver program.
    Accordingly, the FHWA notified the diabetes waiver drivers, in 
separate mailings on March 28, 1995, of the court's decision and 
changes to the Vision and Diabetes Waiver Programs that allowed both 
programs to continue until March 31, 1996. The FHWA established 
stricter performance conditions for all participants, and enhanced the 
FHWA's monitoring of the performance of the waived drivers in order to 
ensure compliance with the statutory test as construed by the court.

Proposed Action

    The FHWA now proposes that the waived drivers in the vision and 
diabetes programs should be allowed to continue driving in interstate 
commerce after March 31, 1996. The underlying basis for this proposal 
is that the FHWA has significant data to show that the continued 
operation of both waived groups of drivers, who total 2359 as of 
November 1, 1995, would be consistent with the safe operation of CMVs. 
Prior to being admitted into the study the waiver applicants had to 
demonstrate a three-year period of accident-free driving performance, 
coupled with an absence of serious traffic violations. Since the 
program began, the data have shown that the driving performance of this 
group of waived drivers was and continues to be better than the driving 
performance of all CMV drivers collectively, based on data obtained 
from the General Estimates Service (GES) as discussed more fully 
below.3 Moreover, each driver in the waiver programs has been 
closely monitored, in many cases for three years or more. Coupled with 
their 3-year good driving record preceding the waivers, the drivers 
have individually merited partial exemption from Secs. 391.41(b)(10) or 
391.41(b)(3).

    \3\ The GES is a national survey conducted by the National 
Highway Traffic Safety Administration and was selected for use as 
the best measure of the prevailing national norm relative to large 
truck accidents.
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    Consequently, the FHWA proposes to amend part 391 of the FMCSRs to 
grant grandfather rights to all drivers holding a valid Federal vision 
or diabetes waiver on March 31, 1996. By proposing the grandfather 
provision, the FHWA intends to allow only those drivers who have been 
granted temporary waivers to 

[[Page 608]]
participate in the Federal vision and diabetes waiver programs, 
numbering 2359 as of November 1, 1995, to continue to operate in 
interstate commerce beyond March 31, 1996, subject to certain operating 
conditions. This action would provide relief to these drivers who 
otherwise would not be permitted to operate a CMV in interstate 
commerce. These grandfather provisions would also be conditional in 
order to further reduce any possible risk associated with those 
drivers. In addition to the conditions regarding medical requirements 
discussed below, the FHWA proposes to continue monitoring the 
performance of these drivers through periodic checks.

Medical Requirements for Operating Under This Grandfather Provision

    The FHWA recognizes that any person's medical or physical condition 
may deteriorate in a short period of time. The FHWA proposes to require 
an annual physical examination pursuant to Sec. 391.43, instead of 
every 2 years as is required of other drivers, as an extra precaution 
to ensure the continued safe operation of these drivers. Under this 
provision, these drivers, as all other interstate drivers, must be 
otherwise physically qualified pursuant to Sec. 391.41 of the FMCSRs.
    In addition, the FHWA proposes that vision impaired drivers who 
would be grandfathered as a result of this action be required to obtain 
an annual vision examination by an ophthalmologist or optometrist 
indicating that they have been examined within the past two months and 
that the vision in the better eye is at least 20/40 acuity, corrected 
or uncorrected. This information would be submitted to the medical 
examiner at the time of the individual's annual physical qualification 
examination under part 391 of the FMCSRs. Accordingly, the FHWA 
proposes to amend part 391 to incorporate these conditions.
    Similarly, diabetic drivers proposed to be grandfathered as a 
result of this proposal would be required to obtain an annual 
examination by a board certified/eligible endocrinologist who must 
certify that the driver (1) has been examined within the past two 
months; (2) is free of insulin reactions; (3) has the ability and has 
demonstrated willingness to properly monitor and manage his/her 
diabetes; and (4) does not have a diabetic condition that would 
adversely affect his or her ability to operate a CMV. One is free of 
insulin reactions if that individual has experienced less than one 
documented, symptomatic hypoglycemic reaction per month. These drivers 
would be required to carry a source of rapidly absorbable glucose and 
continue to monitor their blood glucose using a portable glucose 
monitoring device equipped with a computerized memory one hour prior to 
and approximately every four hours while driving. Upon request, the 
driver would submit his or her blood glucose logs to the 
endocrinologist and/or the medical examiner or when otherwise directed 
by an authorized agent of the FHWA. A copy of the endocrinologist's 
report would be submitted to the medical examiner at the time of the 
annual physical qualification examination under part 391 of the FMCSRs.
    The FHWA proposes to require this group of drivers to carry a 
medical examiners certificate stating: ``Medically qualified by 
operation of 49 CFR 391.64.'' Drivers who do not provide a copy of the 
required information from the ophthalmologist/optometrist or the 
endocrinologist to the medical examiner at the time of their annual 
physical qualification examinations cannot be recertified to continue 
driving a CMV in interstate commerce under this proposed grandfather 
provision.

Analysis

    The FHWA's proposed action is supported by the findings in an 
assessment prepared for the FHWA to determine the risk associated with 
the exposure to the public that is represented by allowing waivered 
drivers to continue driving after March 31, 1996. A copy of this 
assessment is contained in the docket for public inspection.
    Since the inception of the waiver programs, drivers with waivers 
have been monitored continuously. The monitoring has involved comparing 
the accident rates of the waivered drivers to rates of a reference 
group, GES, that represent the safety level for drivers of large trucks 
(10,000 lbs. or larger) in the United States. The overall accident 
rates of the waivered group represent the cumulative number of 
accidents for drivers still in the program at the time of the report. 
To determine if the waivered drivers in the vision program posed an 
excessive threat to public safety, the monitoring process used the 90 
percent confidence intervals associated with each cumulative accident 
rate and if the lower limit of that confidence interval did not exceed 
the national accident rate, the drivers in the program were considered 
not to be a threat to public safety.
    To determine if the waivered drivers in the diabetes program posed 
an excessive threat to public safety, it was decided that sampling 
error and confidence intervals would play no role in the decision 
process. This was done because the small sample of drivers who received 
diabetes waivers would lead to wide confidence intervals. Rather, in 
the event that the accident rate of the diabetes waiver group would 
become larger than the national rate, notification would be made that 
there could be a threat to public safety. In this case, the national 
rate is treated as a constant since it is frequently expressed as an 
official rate without a confidence interval.
    Additional monitoring and more stringent conditions were 
implemented in early 1995 in response to the Advocates decision and the 
concerns raised by the safety community. In addition to the group 
assessment, the waivered drivers were now subject to a day-by-day 
individual assessment relative to program compliance, violations and 
accidents. Drivers in violation of program conditions were identified 
and removed if warranted; thereby identifying, in a timely fashion, 
aspects of the program that could compromise public safety.\4\ 
Therefore in both cases, data presented below will represent drivers 
who are still in the program as of this notice.

    \4\ Vision: At the end of October, 1995, 2240 drivers remained 
in the vision waiver program. A total of 317 drivers had their 
waivers revoked. Two hundred and thirty one were revoked for failure 
to submit monthly mileage reports. Twelve were revoked because of 
convictions for serious traffic or disqualifying offenses. Sixty-
five were revoked for failure to submit a medical exam. Seven 
waivers were canceled for medical reasons. Diabetes: At the end of 
October, 1995, 119 drivers remained in the diabetes waiver program. 
A total of seven drivers had their waivers revoked. Three were 
revoked for failure to submit monthly mileage reports. One driver 
had his waiver revoked because of a disqualifying offense. Three 
were revoked for failing to submit a medical exam. Nine waivers were 
canceled for medical reasons.
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Drivers With Vision Waivers

    The FHWA examined the vision waiver data in terms of how the waiver 
group performed in relation to the national population of large truck 
drivers and the future risk of these drivers from their behavior across 
time. An examination of the cumulative accident rates of the vision 
waivered drivers has shown a steady decline, and by June 1995, the 
cumulative accident rate (1.63) was significantly lower than the most 
recent national rate (2.422).
    An assessment of the trend in accident rates for this group was 
performed since the future driving behavior of this group is important 
to the disposition of the program. Findings from the evaluation of 
accident data occurring in six-month periods indicate that there is a 
decline in the total 

[[Page 609]]
accident rates across the periods. This significant negative trend 
suggests that these drivers are becoming increasingly careful in the 
operation of CMVs.
    Some accidents that are the fault of these drivers can be clearly 
identified by virtue of an associated moving violation issued to a 
waivered driver. All waivered drivers are required to report any 
accident involvement whatsoever while operating a CMV and all accident 
information is verified through each driver's State motor vehicle 
record (MVR). Accidents associated with moving violations were examined 
for six-month periods between July 1992 and June 1995. The accident 
rates decreased across time with the exception of the period between 
January 1994 and June 1994. One explanation for this anomaly could be 
the severe winter weather that occurred in that period. The negative 
trend for accidents associated with moving violations was not as 
pronounced as the negative trend for total accidents for the waivered 
group.
    This evaluation of the performance data and assessment of risk 
indicates that the drivers who received vision waivers and are 
presently in the program will present no additional risk if they are 
allowed to continue to drive after March 1996. This group of drivers 
had accident rates initially (July 1992 to June 1993) that were 
comparable to the general population of large truck drivers. Following 
that period, their accident rates were consistently lower than the 
national rate. That performance, coupled with a three-year period of 
safe driving performance prior to being admitted into the program, 
suggests that this group of drivers exhibits behavior which presents no 
additional risk to the public.
    With respect to future risk to the public, the data show a 
decreasing trend in total accident rates over equal time periods across 
driver participation in the waiver program. Accidents associated with a 
moving violation also show a decreasing trend, though not as pronounced 
as total accidents. This, combined with accident rates that are lower 
than the national rate, shows that these drivers will be less of a 
threat to public safety than the general population of CMV drivers. 
Moreover, each driver's performance was individually assessed to the 
extent that such driver met the requirements of the strengthened 
conditions and closer monitoring in effect since February 1995.

Drivers With Waivers for Diabetes

    Overall monitoring of this group is performed on a quarterly basis 
in relation to the national accident rate for large trucks. As 
previously mentioned, the national rate is treated as a constant and 
any time the accident rate of the waivered group is larger than the 
national rate, notification is made to the FHWA that there could be a 
threat to public safety. From September 1993 to May 1995, 11 accidents 
were reported and, during this same period, waivered drivers reported a 
total of 3.83 million vehicle miles traveled (VMT). The accident rate 
of the waivered drivers for this period is 2.872 accidents per million 
VMT. This is larger than the 1993 national rate, 2.390 accidents per 
million VMT. The property damage only accident rate for the waivered 
drivers (2.089) is also larger than the comparable national rate 
(1.782) as is the case for the fatal accidents (.261 for waiver group 
versus .027 for the national rate).
    Because of the warning systems, these accidents were analyzed on an 
individual basis before decisions were made to continue the program. Of 
the eleven accidents reported, only one was shown to be the fault of a 
driver in the program. Although this driver was not initially charged 
in this accident, the accident did involve a fatality and the waivered 
driver was subsequently charged and convicted of involuntary 
manslaughter. Consistent with the conditions, this driver's waiver has 
been revoked and the driver has been dropped from the program.
    In none of the other ten accidents was the waivered driver found to 
be at fault. Most involved only incidental contact with another 
vehicle. In fact, only three of the ten accidents would have been 
reportable or recordable under applicable regulations due to injury or 
damage. These three, plus the one involving a fatality, are the only 
accidents which are actually comparable to the national data. Accidents 
are not included in the national data unless there is a police report 
and one of the involved vehicles is towed from the accident scene. This 
is not the case for the waiver programs where all accidents are 
included, regardless of how minor they are. If the same criteria were 
to be applied to the waivered group, then only three of the eleven 
accidents would be comparable to the national data and the resulting 
accident rate for the drivers with waivers for diabetes would be .783 
per million VMT. This rate is considerably below the national rate of 
2.390. Based on this performance data and the demonstrated three-year 
period of safe driving by this group prior to being admitted into the 
waiver program, it is reasonable to conclude that these drivers are not 
a high risk group.
    Notwithstanding the good driving performance of these drivers, the 
FHWA proposes to require the continued monitoring of the physical 
conditions that have caused these drivers to be unqualified pursuant to 
Sec. 391.41(b)(10) and Sec. 391.41(b)(3) of the FMCSRs. Therefore, the 
FHWA is requiring annual medical examinations to evaluate the 
disqualifying conditions in addition to the annual physical 
qualification examinations pursuant to part 391 of the FMCSRs.

Notice of Determination

    The FHWA believes that its proposed actions in this document are 
consistent with the public interest and consistent with the safe 
operation of commercial motor vehicles. Based on the performance data 
gathered to date and the risk analysis performed on this data, the FHWA 
proposes that the drivers who currently hold waivers from the Federal 
vision and diabetes requirements should be allowed to continue to 
operate CMVs in interstate commerce after March 31, 1996. The 
statistics that have been gathered from these groups of waived drivers 
indicate that these drivers have performed and continue to perform more 
safely than those drivers in the general population of commercial 
drivers. In addition to their good driving performance, the continued 
monitoring of their physical condition and safety performance will 
further ensure the continued safe operation of these CMV drivers. The 
performance data collected under the vision and diabetes waiver 
programs would be used as the basis for this proposal; however, 
separate research proceedings would form the basis for any future 
adjustments, if warranted, to the current vision and diabetes 
standards.
    Additionally, the proposal to permit these grandfathered drivers to 
continue to work in their chosen field of occupation is consistent with 
the public interest policy of employing persons with disabilities, 
which is evidenced in both the Rehabilitation Act of 1973, Pub. L. 93-
112, 87 Stat. 355, as amended, and the Americans With Disabilities Act 
of 1990, Pub. L. 101-336, 104 Stat. 327, as amended. Therefore, the 
FHWA proposes to amend part 391 of the FMCSRs to incorporate these 
grandfather provisions for these groups of drivers.

Technical Amendment

    The FHWA is also proposing to relocate the provision in Part 391 
providing limited exemptions for intra-

[[Page 610]]
city zone drivers. The current provision, required under the Motor 
Carrier Act of 1988 (49 U.S.C. 31136(f)), is codified as paragraph (d) 
of 49 CFR 391.2, General Exemptions. This action would redesignate the 
provision, without any substantive change, as Sec. 391.62, where it is 
more properly included in subpart G, Limited Exemptions.

Executive Order 12866 (Regulatory Planning and Review) and DOT 
Regulatory Policies and Procedures

    The FHWA has determined that the proposed action, if implemented, 
would not be a significant regulatory action under Executive Order 
12866 or under the regulatory policies and procedures of the DOT. It is 
anticipated that the economic impact of this proposed rule would be 
minimal because of its limited application and the small number of 
affected drivers. Moreover, the action proposed herein would not have 
any permanent effect on any existing safety standard. It would merely 
continue the status quo by grandfathering some 2,300 drivers who have 
been operating safely for substantial periods of time. Therefore, a 
full regulatory evaluation is not required.

Regulatory Flexibility Act

    In compliance with the Regulatory Flexibility Act, 5 U.S.C. 601-
612, the FHWA has evaluated the effects of this proposal on small 
entities. The FHWA believes that this proposed action would not have a 
significant economic impact on a substantial number of small entities 
because this proposal is directed solely at a limited number and 
narrowly defined population of CMV drivers operating in interstate 
commerce. This proposal would not cause a major increase in costs or 
prices and, therefore, would not have a significant effect on the 
nation's economy. The FHWA intends to further evaluate the economic 
consequences of this proposal on small entities in light of the 
comments received in response to this notice.

Executive Order 12612 (Federalism Assessment)

    This proposed rulemaking, if promulgated, would amend Part 391 of 
the FMCSRs pertaining to the qualification of drivers. This action 
would allow drivers who currently hold waivers from the Federal vision 
and diabetes requirements to continue operating in interstate commerce 
after March 31, 1996. This proposal has been analyzed in accordance 
with the principles and criteria contained in Executive Order 12612. 
Nothing in this proposal would directly preempt any State law or 
regulation. This proposal would not limit the policymaking discretion 
of the States. Therefore, the FHWA has determined that this proposal 
does not have sufficient federalism implications to warrant the 
preparation of a separate Federalism Assessment.

Executive Order 12372 (Intergovernmental Review)

    Catalog of Federal Domestic Assistance Program Number 20.217, Motor 
Carrier Safety. The regulations implementing Executive Order 12372 
regarding intergovernmental consultation on Federal programs and 
activities apply to this program.

Paperwork Reduction Act

    This program does not contain a collection of information 
requirement for purposes of the Paperwork Reduction Act of 1980, 44 
U.S.C. 3501-3520.

Regulation Identification Number

    A regulation identification number (RIN) is assigned to each 
regulatory action listed in the Unified Agenda of Federal Regulations. 
The Regulatory Information Service Center publishes the Unified Agenda 
in April and October of each year. The RIN contained in the heading of 
this document can be used to cross reference this action with the 
Unified Agenda.

List of Subjects in 49 CFR Part 391

    Driver qualifications, Highways and roads, Highway safety, Motor 
carriers, Motor vehicle safety.

    Issued on: December 21, 1995.
Rodney E. Slater,
Federal Highway Administrator.

    In consideration of the foregoing, the FHWA proposes to amend 49 
CFR, subchapter B, chapter III, part 391 as set forth below:

PART 391--QUALIFICATIONS OF DRIVERS [REVISED]

    1. The authority citation for part 391 continues to read as 
follows:

    Authority: 49 U.S.C. 504, 31133, 31136, and 31502; and 49 CFR 
1.48.


Sec. 391.2  [Redesignated]

    2. Part 391 is amended by redesignating Sec. 391.2, as Sec. 391.62, 
and revising the section to read as follows:


Sec. 391.62  Limited exemptions for intra-city zone drivers.

    The provisions of Secs. 391.11 (b)(1) and 391.41 (b)(1) through 
(b)(11) do not apply to a person who:
    (a) Was otherwise qualified to operate and operated a commercial 
motor vehicle in a municipality or exempt intracity zone thereof 
throughout the one-year period ending November 18, 1988;
    (b) Meets all the other requirements of this section;
    (c) Operates wholly within the exempt intracity zone (as defined in 
Sec. 390.5);
    (d) Does not operate a vehicle used in the transportation of 
hazardous materials in a quantity requiring placarding under 
regulations issued by the Secretary under 49 U.S.C. chapter 51; and
    (e)(1) Was not yet 21 years of age on July 1, 1988; or
    (2) Has a medical or physical condition which:
    (i) Would have prevented such person from operating a commercial 
motor vehicle under the Federal Motor Carrier Safety Regulations 
contained in this subchapter;
    (ii) Existed on July 1, 1988, or at the time of the first required 
physical examination after that date; and
    (iii) The examining physician has determined has not substantially 
worsened since July 1, 1988, or at the time of the first required 
physical examination after that date.
    2. A new Sec. 391.64 is added to read as follows:


Sec. 391.64  Grandfathering for certain drivers participating in vision 
and diabetes waiver studies.

    (a) The provisions of Sec. 391.41(b)(3) do not apply to a driver 
who was a participant in good standing on March 31, 1996, in a study 
concerning the operation of commercial motor vehicles by insulin-
controlled diabetic drivers, provided:
    (1) The driver is physically examined every year, including an 
examination by a board-certified/eligible endocrinologist attesting to 
the fact the driver is:
    (i) Otherwise qualified under Sec. 391.41;
    (ii) Free of insulin reactions (one is free of insulin reactions if 
that individual has experienced less than one documented, symptomatic 
hypoglycemic reaction per month);
    (iii) Able to and has demonstrated willingness to properly monitor 
and manage his/her diabetes; and
    (iv) Not likely to suffer any diminution in driving ability due to 
his/her diabetic condition.
    (2) The driver agrees to and complies with the following 
conditions:
    (i) A source of rapidly absorbable glucose will be carried at all 
times while driving;
    (ii) Blood glucose levels are to be self-monitored one hour prior 
to driving and 

[[Page 611]]
at least once every four hours while driving or on duty prior to 
driving using a portable glucose monitoring device equipped with a 
computerized memory;
    (iii) Blood glucose logs will be submitted to the endocrinologist 
or medical examiner at the annual examination or when otherwise 
directed by an authorized agent of the FHWA; and
    (iv) A copy of the endocrinologist's report will be provided to the 
medical examiner at the time of the annual medical examination; and
    (v) A copy of the annual medical certification will be provided to 
the employer for retention in the driver's qualification file and a 
copy of the certification will be retained on his/her person while 
driving for presentation to a duly authorized federal, state or local 
enforcement official.
    (b) The provisions of Sec. 391.41(b)(10) do not apply to a driver 
who was a participant in good standing on March 31, 1996, in a study 
concerning the operation of commercial motor vehicles by drivers with 
visual impairment in one eye, provided:
    (1) The driver is physically examined every year, including an 
examination by an ophthalmologist or optometrist attesting to the fact 
the driver
    (i) Is otherwise qualified under Sec. 391.41; and
    (ii) Continues to measure at least 20/40 (Snellen) in the better 
eye.
    (2) The driver provides a copy of the ophthalmologist or 
optometrist report to the medical examiner at the time of the annual 
medical examination.
    (3) The driver provides a copy of the annual medical certification 
to the employer for retention in the driver's qualification file and 
retains a copy of the certification on his/her person while driving for 
presentation to a duly authorized Federal, State or local enforcement 
official.
    3. Section 391.43 is amended by redesignating paragraphs (e), (f) 
and (g) as paragraphs (f), (g) and (h), respectively and by adding a 
new paragraph (e) to read as follows:


Sec. 391.43  Medical examination; certificate of physical examination.

* * * * *
    (e) Any driver operating under a limited exemption authorized by 
Sec. 391.64 of this part shall furnish the medical examiner with a copy 
of the annual medical findings of the endocrinologist, ophthalmologist 
or optometrist, as required under that section. If the medical examiner 
finds the driver qualified under the limited exemption in Sec. 391.64, 
such fact shall be noted on the Medical Examiner's Certificate.
* * * * *
    4. Section 391.43 is further amended by inserting in the form 
following newly designated paragraph (h), a new entry reading ``____ 
Qualified by operation of 49 CFR 391.64'' immediately following the 
entry ``____ Medically unqualified unless driving within an exempt 
intracity zone''.


Sec. 319.45  [Amended]

    5. Section 391.45 is amended by revising ``Sec. 391.2(d)'' in 
paragraph (b)(2) to read ``391.62, or only by operation of the 
exemption in Sec. 391.64,''.

[FR Doc. 96-218 Filed 1-5-96; 8:45 am]
BILLING CODE 4910-22-P